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Website by Elemento!Wed, 14 Mar 2018 01:26:29 +0000en-UShourly1https://wordpress.org/?v=4.7.5CAN POLICE SEARCH ME IF I DON’T SAY HELLO?https://www.websterslawyers.com.au/criminal-law/can-police-search-dont-say-hello/
Wed, 14 Mar 2018 01:19:23 +0000https://www.websterslawyers.com.au/?p=2969Click to Call Testimonials Find an Expert CAN POLICE SEARCH ME IF I DON’T SAY HELLO? When the police do something illegal and as a result they find evidence of an offence, does that mean that they can’t use that evidence in Court? A recent case involving the unlawful search of a woman whom the…

CAN POLICE SEARCH ME IF I DON’T SAY HELLO?

When the police do something illegal and as a result they find evidence of an offence, does that mean that they can’t use that evidence in Court? A recent case involving the unlawful search of a woman whom the police said looked nervous and fidgety and wouldn’t say ‘hello’ to them required the Court to consider this question.

In this case two police officers who were on duty in Hindley Street, walked into the gaming room of the West End Tavern. One of the officers heard someone yell ‘cops’. That officer walked up to the woman who was sitting in front of a pokie machine, although it wasn’t suggested that she had been the one who called out. He tried to engage her in conversation by saying ‘hello’ but she wouldn’t speak to him and stayed focussed on the pokie machine. According to the police officer the woman appeared ‘nervous and fidgety’ and later she seemed to have a ‘dry mouth and a clenched jaw’. He said her physical presentation was like someone who had used drugs.

The woman had a large handbag and the police officer told her to put it on the seat next to her as he was going to search her. He said he could see in the bag a small round plastic tub about the size of a 50 cent piece with tape around the top and that in his experience tubs like that often contain drugs.

The police in fact found in her handbag two plastic tubs containing the drug methylamphetamine and the woman was charged with drug trafficking.

Where a person who is charged wants to argue that evidence should be excluded because it was obtained unlawfully an application is made to the Court. In this case the woman argued that the search was unlawful.

There are two legal powers that the police argued allowed them to conduct the search. Under the Controlled Substances Act (section 52(6)) a police officer may search any person whom they reasonably suspect has in his or her possession any substance or equipment in contravention of that Act. In addition, section 68 of the Summary Offences Act gives the police power to search a person who is reasonably suspected of having on or about their person stolen goods, anything that it is illegal to possess, or evidence of the commission of an indictable (serious) offence.

The key to these two powers to search is that the police office must not only have a suspicion, but it must be reasonable. That means that there is an element of objectivity to their suspicion, or in other words asking whether a reasonable person in the position of the police officer would have entertained the same suspicion. It has to be more than just curiosity, speculation or wondering but has to be a rational conclusion based on the information available.

So in this case the reason the police officer searched the woman really came down to the fact that (1) he heard someone yell out ‘cops’ when he came in, (2) the woman wouldn’t say hello, and (3) she appeared nervous and fidgety and seemed to have a dry mouth and a clenched jaw. A lot of people might feel nervous when confronted by a uniformed police officer and choose not to engage in a conversation with them, but does that mean that the police should be allowed to search them?

Understandably the Court concluded this was not a lawful basis on which to authorise the police to search a person.

Is evidence unlawfully obtained automatically excluded from the trial?

Unlike what we might see in many American movies, in Australia evidence is not automatically excluded when it is found to have been obtained unlawfully. The Court has the discretion to exclude the evidence and in making that decision it must take into account two competing matters. The public need to bring those who commit criminal offences to justice, and the public interest in protecting individuals from unlawful treatment. At what price will the Court allow a conviction to be obtained?

In this case the Court noted that it had a duty to ensure that unlawful conduct on the part of the police is not to be encouraged. Many innocent members of the public go to licenced venues and gaming rooms and a lot of them are carrying a handbag, so it was important to ensure that the police only search a person when they have the lawful power to do so.

We continue to see cases in which police use their powers of search in circumstances where they are not entitled. An experienced criminal lawyer will carefully examine all the facts to determine whether the evidence that police are relying on to prove a charge has been obtained improperly. For all cases involving police charges speak to an expert criminal lawyer at Websters Lawyers without delay.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

]]>HOONING AND SA’S ANTI-HOON LAWS: WHAT DO I NEED TO KNOW?https://www.websterslawyers.com.au/news/hooning-laws/
https://www.websterslawyers.com.au/news/hooning-laws/#respondMon, 26 Feb 2018 22:28:20 +0000https://www.websterslawyers.com.au/?p=2874Click to Call Testimonials Find an Expert HOONING AND SA'S ANTI-HOON LAWS: WHAT DO I NEED TO KNOW? - By Naomi Hill – Burnouts, donuts, smoking tyres, revving engines, drag racing, speeding. Even if you haven’t actually witnessed any of these things, you’re probably familiar enough with them to know that they’re activities commonly associated…

HOONING AND SA'S ANTI-HOON LAWS: WHAT DO I NEED TO KNOW?

Burnouts, donuts, smoking tyres, revving engines, drag racing, speeding. Even if you haven’t actually witnessed any of these things, you’re probably familiar enough with them to know that they’re activities commonly associated with “hooning,” or “hoon driving.”

Whilst some aspects of hooning – for example speeding – have always been illegal, anti-hoon laws were originally introduced in 2005. Then the South Australian Government decided to clamp down on the activities by introducing new, targeted laws. This happened in 2010. Here’s a summary of the laws and your rights and responsibilities.

Anti-Hoon laws: What do they say about Hooning?

South Australian laws say that the misuse of a motor vehicle is an offence. A person misuses a vehicle if they:

Cause a vehicle to have “sustained wheel spin” (producing smoking or squealing of tyres).

Drive a vehicle in a way that will cause a disturbance to residents or workers due to tyre or engine noise.

Break up the ground surface (or cause other damage) of a road, park, garden or other public area by driving the vehicle onto that area.

These activities are not offences if there is consent by the property owner, occupier or person in control of the property.

Penalties

There are a range of penalties for these offences, including fines of up to $2500, licence disqualification and demerit points. For more serious offences, or in circumstances in which the driver has previously been charged with similar offences, more serious penalties may apply.

For example, police can clamp, seize or impound a vehicle if the driver has engaged in misuse of a motor vehicle and/or committed an aggravated offence, for example:

Caused death or harm by dangerous driving.

Left an accident scene after causing death or harm by dangerous use of a vehicle.

A finding of guilt in relation to one of the more serious driving offences, even where there is no history of bad driving, can result in a forfeiture application being filed by the prosecution, seeking Court orders that you forfeit your car.

If, in a twelve-month period, a person has been found guilty of or fined in relation to at least two driving offences (deemed to be offences of a “prescribed nature”), a Court can order that the car be forfeited.

In addition, if, in a ten year period, a person has been found guilty of or has been fined in relation to at least three offences, police can impound their vehicle for up to 6 months. Fines of up to $2500 may also apply, along with licence disqualification and up to 6 months imprisonment.

It is also an offence to interfere with a wheel clamp that is fixed to a car. Similar penalties apply.

The Government now has the power to destroy cars and on occasions has done so by publically crushing them.

What does it mean?

It’s always a good idea to keep in mind what activities constitute hooning offences. It is also worthwhile remembering that police have the power to seize and even destroy your vehicle in some circumstances.

But not all “misuse” offences are clear-cut. There must still be proof that the offence was committed and that the conduct actually did infringe the law. If you have been charged with a hooning offence, you will need legal advice as soon as possible, even if it’s a first offence. A traffic lawyer can assist you to understand your rights and ensure that all avenues are explored in preparing a defence to the charges.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

]]>https://www.websterslawyers.com.au/news/hooning-laws/feed/0PEDESTRIAN OFFENCES: FACT OR FICTION?https://www.websterslawyers.com.au/news/pedestrian-offences/
https://www.websterslawyers.com.au/news/pedestrian-offences/#respondWed, 21 Feb 2018 04:08:23 +0000https://www.websterslawyers.com.au/?p=2845Click to Call Testimonials Find an Expert PEDESTRIAN OFFENCES: FACT OR FICTION? - By Chloe Goldsworthy – Have you ever wondered whether jaywalking is an offence? Or drink walking? And if they are offences, what are the penalties? With the Adelaide Fringe Festival in full swing and Mad March just around the corner, it’s a…

PEDESTRIAN OFFENCES: FACT OR FICTION?

Have you ever wondered whether jaywalking is an offence? Or drink walking? And if they are offences, what are the penalties? With the Adelaide Fringe Festival in full swing and Mad March just around the corner, it’s a great time to kick back, relax and enjoy the best of our fair city. But it’s also a time when police may clamp down on pedestrian offences, especially in vicinities in which alcohol is consumed. Here’s what you need to know.

Jaywalking

South Australian laws don’t have a specific offence of ”Jaywalking.” It’s an informal term which means that a person has crossed a road unlawfully or in doing so has endangered themselves or others.

South Australian law instead has specific offences in relation to pedestrians. It is an offence to:

Walk without due care or attention, or without reasonable consideration for other road users, including other pedestrians, motorists and cyclists.

Pedestrians must not cross a road diagonally, unless there is a sign allowing them to do so.

Pedestrians must not cross a road within 2o metres of a pedestrian crossing. They must use the pedestrian crossing to cross the road.

If pedestrian lights are in operation, a pedestrian can only cross when the lights are green.

Penalties for these pedestrian offences can range from a $48 expiation fee (or on-the-spot-fine) to up to $2,500 where the person has been found guilty of the offence by a court.

Drink Walking

Instances of drink walking have significantly increased over recent years. “Drunk walkers” are pedestrians who have had an excessive amount of alcohol, or who are under the influence of alcohol.

This is particularly an issue when people are leaving events and are walking near major roads.

Drink walkers present a danger just by walking near a road. If they fall or stumble onto the road, they are at risk of being hit by a car, even if the car is travelling at a slow speed. A report noted that in 2016 one in three pedestrians who were killed on Queensland roads had been drinking.

There is no specific offence of drink walking, but police do have the power to apprehend a person who is drunk in a public place. They can take them to a police station to sober up if the person can’t care for themselves. The person can only stay at the police station for a maximum of twelve hours. Although not under arrest, the person is considered to be in the lawful custody of the police and so if they wish to contact a lawyer or support person, they must have the opportunity to do so.

However, a person who is drunk in a public place may be charged with disorderly behaviour if they behave in a disorderly or offensive manner, for example:

This means that a drunk pedestrian isn’t breaking the law just because they are drink walking. But if they engage in other behaviour, for example they pick a fight with someone or start playing chicken with oncoming traffic, they may be arrested and charged with other offences.

It’s worth taking some precautions to keep yourself safe this Mad March. If you’re in for a big night, make sure you can exercise enough control over yourself to use pedestrian crossings or to catch a cab or an Uber. But if you do find yourself in hot water, remember that we’re here to help. Contact us fora free first interview to find out more.

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Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

]]>https://www.websterslawyers.com.au/news/pedestrian-offences/feed/0IS THERE A RISK OF IMPRISONMENT FOR BREACHING FAMILY COURT ORDERS?https://www.websterslawyers.com.au/family-law/imprisonment-family-court-orders/
https://www.websterslawyers.com.au/family-law/imprisonment-family-court-orders/#respondTue, 20 Feb 2018 03:29:36 +0000https://www.websterslawyers.com.au/?p=2841Click to Call Testimonials Find an Expert IS THERE A RISK OF IMPRISONMENT FOR BREACHING FAMILY COURT ORDERS? - By Jake Woolford – After a man sent $265,000 to a woman in the United States to pay a “debt,” his wife successfully sought Family Court orders preventing him from getting rid of other assets. He…

IS THERE A RISK OF IMPRISONMENT FOR BREACHING FAMILY COURT ORDERS?

After a man sent $265,000 to a woman in the United States to pay a “debt,” his wife successfully sought Family Court orders preventing him from getting rid of other assets. He acted in breach of those orders and so the Court found him in contempt and imprisoned him for 18 months. This was an unusual step in the family law jurisdiction, but it serves as a reminder that parties in legal proceedings must behave honestly, make full and frank disclosure and obey the Court’s orders.

A husband and wife were married in 2009, and their marriage ended in late 2016. In the process of dividing the property of the marriage, the wife became concerned that the husband was dealing with their assets in ways that would disadvantage her.

In June 2017, the wife sought the Court’s intervention after she discovered that the husband had sent their savings of $265,000 to a woman in the United States. The man claimed this was for part-payment of a 20-year-old debt that was owing to the woman, which she had suddenly wanted to be repaid.

The Court found that this was “a very suspicious transaction” and ordered the American woman to send the money back. She didn’t comply with that order.

Then, in August 2017, the wife became aware that the husband was trying to sell their car (the value of which was in dispute) and was about to receive $100,000 from an investment in a company. She applied to the Court for an urgent injunction to restrain the husband from selling the car and dealing with the company proceeds. The Court granted the injunction.

The Court also adjourned the case until September 2017. Just before that hearing, the husband’s lawyers ceased to act for him and advised the wife that:

The husband was living in Asia

He had no longer had any assets in Australia.

He had received the $100,000 interest in the investment company.

He had sold the car for $50,000 and had kept the money.

The Court said, “it is hard to imagine a better example of a litigant who has effectively thumbed his nose at the Court” and granted a watch list order. This meant that if the man returned to Australia, authorities would prevent him from leaving again without his first complying with the Court’s orders.

The Court adjourned the case to October 2017.

Second hearing

In October 2017, the case again came before the Court. The husband had failed to comply with the Court’s previous orders and so the wife sought contempt of court orders against the husband.

A person can be in contempt of court when a court finds that they have been disobedient or disrespectful towards a court or officers of the court (usually judges). This includes failing to comply with orders of the Family Court.

Typically, punishment includes fines or imprisonment.

The wife had originally sought a property order of $343,000. In the second hearing, the Court made this order and also ordered that the husband pay the wife’s legal costs.

The Court noted that there were some “disturbing” aspects of the husband’s conduct:

He sold the car and took possession of the company funds after he was ordered not to.

He deliberately instructed his solicitors in a way that misled the Court: he advised them that the car hadn’t been sold and he was not in possession of the company funds when in fact it had and he was.

The husband sent the money overseas, in “flagrant breach” of the Court’s orders.

The Court also noted that usually, contempt orders are to coerce a person to comply with Court orders. They are also to punish a person for failing to comply with orders of the Court. The Court said that in these circumstances, because the husband had failed to rectify the breach, there was little else to conclude other than the husband had deliberately failed to comply with the Court’s orders.

The Court found that the husband’s wilful and flagrant breach of its Orders meant that the wife faced the prospect of not getting any money. It said, “this is the worst kind of contempt that this Court could see.”

Because of the seriousness of his conduct, the Court sentenced him to 18 months imprisonment and awarded the wife indemnity costs. This means that the husband had to pay all of the wife’s legal costs and expenses. Usually, if costs are awarded, there is a gap between what is paid and a person’s actual costs. But an award of indemnity costs is less common and serves as a deterrent to prevent similar future conduct.

What does it mean?

This case vividly illustrates how important it is to obey Court orders. It doesn’t matter whether you agree with them. Once an order is made, any failure to abide by it may mean that you are exposed to a prison term, fines or the other party’s legal costs. The husband in this case may not have considered imprisonment as a possible outcome of his actions but it’s worth remembering that an order for imprisonment can be made outside the criminal courts, as this case illustrates.

It is also essential to disclose fully your financial situation and activities to the other party and to the Court. This is known as “full and frank” disclosure. Failure to make full and frank disclosure may result in the other party successfully claiming a miscarriage of justice, which means that any orders or agreement can be set aside.

This could cause significant expense and delay in resolving property issues between former partners or spouses.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

]]>https://www.websterslawyers.com.au/family-law/imprisonment-family-court-orders/feed/0POLICE DROPPED THE CHARGES. CAN I CLAIM MY LEGAL COSTS?https://www.websterslawyers.com.au/news/police-charges-legal-costs/
https://www.websterslawyers.com.au/news/police-charges-legal-costs/#respondFri, 16 Feb 2018 04:16:34 +0000https://www.websterslawyers.com.au/?p=2815Click to Call Testimonials Find an Expert POLICE DROPPED THE CHARGES. CAN I CLAIM MY LEGAL COSTS? - By Chloe Goldsworthy – When a man challenged a speeding fine, the police dropped the charges against him. But he was unhappy that this had happened without explanation, after causing him much inconvenience and expense. He sought…

POLICE DROPPED THE CHARGES. CAN I CLAIM MY LEGAL COSTS?

When a man challenged a speeding fine, the police dropped the charges against him. But he was unhappy that this had happened without explanation, after causing him much inconvenience and expense. He sought reimbursement of his legal costs and appealed to the Supreme Court of South Australia. This case is a good summary of the circumstances in which defendants in criminal and traffic cases are entitled to their costs.

A man received an expiation notice that alleged that he had been speeding in Nairne, South Australia. Instead of paying the fine, he viewed the photo that the police claimed was evidence of his offence. After seeing the photograph, he decided to dispute the offence and elected to be prosecuted.

The police then charged him with speeding and the case went to the Mount Barker Magistrates Court (being the court closest to where the alleged offence occurred) for some pre-trial (interlocutory) hearings. The purpose of the hearings was to set out a timetable for the case to be prepared for trial. The man was self-represented.

There were five interlocutory hearings in total and the man attended on each occasion. The Court was located about 35 minutes’ drive away from the man’s home in Bellevue Heights.

On the day of the trial, the man again attended Mount Barker Court. However, instead of the trial commencing, the police prosecutor withdrew the charges. The man had no warning that this would happen and the prosecutor offered no reason for the withdrawal.

The Magistrate granted the police permission to withdraw the charges without any discussion with the man. The Magistrate didn’t explain to the man what was happening, didn’t give him the opportunity to oppose the withdrawal, and didn’t give him the opportunity to seek payment of his costs as a condition of his consent to the withdrawal.

The man applied for his costs but the Magistrate refused, saying that because the man had no legal representation, he wasn’t entitled to his costs.

The man appealed the decision to the Supreme Court of South Australia.

Decision – costs

One of the key questions for the Court to determine was whether a person who had no legal representation was entitled to costs. One of the general costs principles is that lawyers’ fees can be compensated because they are a significant expense. But in this case, the man had been put to the expense and inconvenience of travelling from his home to attend Court on six occasions (including the day of the trial).

The Court said that there was a case flow management scheme in place to ensure that the time and resources of the Magistrates Court were used as effectively as possible, and that cases should not be listed for trial unless it is clear that a trial is necessary. In this case, the prosecutor had admitted to the Magistrate that they believed they would have difficulty in securing a conviction because for some time they believed they would be able to show that the man was the driver of the car. But after making some enquiries, they changed their view. There was no other explanation for the withdrawal of the charges.

In cases that go to trial, the Rules of the Magistrates Court may require that there is a pre-trial conference and that all parties attend. One of the purposes of the conference is to work out whether the case can be settled before trial and if not, to ensure that the case efficiently proceeds to trial.

The Supreme Court found that the police should have withdrawn the charges at the pre-trial conference and its failure to do so constituted a “deplorable flouting of the case-flow management regime.” There was no excuse for having the case listed for trial and then withdrawing it at the last minute. The police failed to give notice to the Court or to the defendant of its intention to withdraw the charges.

The Court rules prevented the prosecution from laying further charges against the man because the 6-month time limit for doing so had expired. This meant that the situation was worsened because the prosecution had no intention of laying the charges again in a different form after they had been withdrawn.

The Supreme Court found that because the man had no legal representation, he wasn’t entitled to costs for the time he spent preparing the case for trial. But he was entitled to his travel expenses which included out-of-pocket expenses (for petrol) and for his time.

He was awarded $420 in costs.

What does it mean?

The importance of case flow management principles can’t be overstated. Without them, the Court system would almost grind to a halt, groaning under the burden of unnecessary prosecutions. This is why the Supreme Court took the issue so seriously. If the prosecution acted in a similar way with all of its cases, the Court system would be unable to cope.

The man stood up for his rights and as an important first step, he didn’t pay the fine when he first received the expiation notice. Because payment of the fine constitutes an admission of the offence, he would have extinguished his right to challenge the offence had he done so.

This decision confirms that a person can be entitled to their costs, even if they don’t have a lawyer. Out-of-pocket expenses and time are also important considerations. Not only was the man entitled to have this considered by the Magistrate, he was also entitled to be informed of his legal rights about costs and the options available to him.

If you are concerned about criminal or traffic charges against you and are considering engaging legal representation to defend yourself, contact us today fora free initial consultation. We have a team of outstanding traffic lawyers who can inform you of your rights, your chances of success and who can assist you to recover any costs (including legal costs) to which you may be entitled.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

]]>https://www.websterslawyers.com.au/news/police-charges-legal-costs/feed/0DEFAMATION: WHAT ARE AGGRAVATED DAMAGES AND WHEN ARE THEY AWARDED?https://www.websterslawyers.com.au/court-litigation-lawyers/defamation-aggravated-damages/
https://www.websterslawyers.com.au/court-litigation-lawyers/defamation-aggravated-damages/#respondThu, 08 Feb 2018 03:57:42 +0000https://www.websterslawyers.com.au/?p=2778Click to Call Testimonials Find an Expert DEFAMATION: WHAT ARE AGGRAVATED DAMAGES AND WHEN ARE THEY AWARDED? - By Andrew Carpenter – A recent decision of the Supreme Court of South Australia demonstrates the dangers of publishing defamatory comments about someone, particularly if it’s done on multiple occasions. After a member of a local shooting…

DEFAMATION: WHAT ARE AGGRAVATED DAMAGES AND WHEN ARE THEY AWARDED?

A recent decision of the Supreme Court of South Australia demonstrates the dangers of publishing defamatory comments about someone, particularly if it’s done on multiple occasions. After a member of a local shooting club published website posts, Facebook posts and email suggesting that another member of the club was corrupt, a bully, a thug and a liar, he probably regretted it when he was ordered to pay $90,000 in damages. The case is an excellent reminder that in some situations, ongoing publication of defamatory material can increase the amount of damages to which a defamed person may be entitled.

Background – defamatory comments

Mr Stokes, who was retired, joined his local shooting club in 2010 and quickly became passionate about clay shooting. Mr Ragless had been a member of that same club for about 25 years. Stokes joined the club’s committee and had many new ideas for the direction of the club. Ragless didn’t agree with some of those ideas and soon the two men were in conflict.

Around 2012, Ragless suffered a nervous breakdown, which resulted in the surrender of his gun licence and firearms. He was also suspended from the club. This had a devastating effect on him.

He set up a website to vent his opinions about what had happened. He also sent a series of emails to other members of the club. Many of his website posts, Facebook posts and emails targeted Stokes and the club committee. Stokes claimed that the posts and emails directly attacked his character because they imputed that he:

Was corrupt.

Was a liar.

Had intimidated or attempted to intimidate Ragless and others.

Abused his position with the club.

Was a thug.

Was a bully.

Stokes commenced legal action against Ragless, claiming that Ragless had defamed him in 132 publications over a period of 41 days. Stokes claimed that the publications were a serious and persistent defamation of his character.

Defamation is a statement, comment or implication that is harmful to another person’s reputation. To prove defamation, there must be:

A statement that harms a person’s character and reputation.

Publication of the statement.

Identification of the person who has been defamed. This means that the people who know (or know of) the person would believe that the words are about that person.

Publication can occur in any form of communication, including on websites, social media and in emails. If the people who read the publication understand the significance of the statements, then that is sufficient to establish that publication has occurred.

One of the biggest issues in this legal area is that it’s very easy to make any kind of statement about anyone. This is especially true in the internet era when anyone can set up a website or make a social media post. It can be easy to ruin someone’s reputation, but very difficult to salvage it.

There are various defences to a claim of defamation, for example that:

The statements were true.

The statements were fair comment. That is, based upon facts that can be proven true and were not malicious.

The statements were protected by parliamentary privilege or made in the course of legal proceedings.

The statements were reporting on proceedings of public concern (for example parliamentary sittings).

Qualified privilege protected the statements. That is, there was a legal social or moral duty to make the statement to someone who had a legal, social or moral duty to receive the information.

Decision

The Supreme Court found that Ragless had defamed Stokes. It said that there was harm caused to Stokes’ reputation because when the articles were published on the internet and by email, readers would understand that the statements were about Stokes. It found that the statements exposed Stokes to hatred, contempt, ridicule or lowered his estimation in the eyes of the community.

The Court rejected Ragless’ attempts to defend his conduct by arguing that the statements were protected by qualified privilege because club members had an interest in reading his statements. It also rejected Ragless’ claim that the statements were true.

It said that Ragless’ posts had many defamatory imputations and that they were malicious. Where there is malice, there can be no defence to a claim of defamation.

The Court awarded aggravated damages to Stokes. The purpose of aggravated damages is to act as a punishment for the conduct. For this reason, aggravated damages tend to be substantial. The Court made this decision because:

The publications caused hurt and distress.

Stokes had been concerned that Ragless was seeking media attention.

The publications affected Stokes’ ability to enjoy the sport and to be at the club.

Ragless had published the statements even though there was an injunction in place that ordered him not to do so.

Ragless had admitted to the Court that he would never give up making such imputations against Stokes.

Ragless published a large volume of defamatory material. There was a continual publication over a prolonged period.

The Court ordered Ragless to pay Stokes general damages of $70,000. This was to reflect the amount of harm done to Stokes. It also awarded an additional $20,000 in aggravated damages because the publications were malicious and untrue. The Court also ordered a permanent injunction against Ragless, preventing him from making any further defamatory publications in the future.

What does it mean?

This case is a good reminder to proceed with caution when expressing views about another person, especially on a website, social media or in email. It’s also worth remembering that the effect of defamatory statements or comments can be worsened if there are multiple imputations published over a period of time. Even though these days it’s easy to publish internet material, it doesn’t mean that such material should be published.

The easier it is, the more important it is to think about what you are publishing and to carefully check that you won’t be defaming anyone in the process.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

]]>https://www.websterslawyers.com.au/court-litigation-lawyers/defamation-aggravated-damages/feed/0HELP! I’M BEING SUED FOR DEFAMATION. WHAT SHOULD I DO?https://www.websterslawyers.com.au/court-litigation-lawyers/sued-defamation/
https://www.websterslawyers.com.au/court-litigation-lawyers/sued-defamation/#respondTue, 30 Jan 2018 04:21:02 +0000https://www.websterslawyers.com.au/?p=2764Click to Call Testimonials Find an Expert HELP! I'M BEING SUED FOR DEFAMATION. WHAT SHOULD I DO? - By Andrew Carpenter - One of the greatest modern-day developments is the internet. It has enabled us to access a wealth of information, to tap into any conceivable topic in a matter of seconds and to self-publish…

HELP! I'M BEING SUED FOR DEFAMATION. WHAT SHOULD I DO?

One of the greatest modern-day developments is the internet. It has enabled us to access a wealth of information, to tap into any conceivable topic in a matter of seconds and to self-publish whatever we like. But there’s always a downside. Sometimes the ease of publishing information online can lead to legal trouble.

“Defamation” is a statement, implication or other communication that harms a person’s reputation. It was previously divided into two parts. “Libel” was defamation in written form and “slander” was defamation in spoken form. Now, the single term of “defamation” covers both libel and slander.

If the statement or implication is serious enough, especially if it has caused a person to suffer financial loss, they may take legal action.

It’s one thing for a person to claim to have been defamed, but quite another to prove it. The law requires that a number of criteria be satisfied before a court can find that there has been defamation. There must be:

A statement or implication that is harmful to a person’s character and reputation.

A publication of the statement or implication.

Identification of the person who has been defamed, meaning that people who know (or know of) the person would believe that the statement or implication is about that person.

Why is there a risk of defamation?

Wherever information is published, such as on the internet, there is the risk of defamation. This risk has increased with the growth of social media and mobile apps. For example, the ability to instantaneously review restaurants, cafes and professional services have all increased the risk of an individual being sued for defamation.

This means that everyone has a responsibility to think carefully about what they publish on the internet and to avoid defaming others. A claim for defamation can be financially disastrous - if legal action is taken because of a published comment, a person can face huge legal costs and may also have to pay significant damages to the other party.

Legal action: How does it work?

A person who claims to have been defamed may decide to take legal action and will often engage (or instruct) a solicitor to assist.

As a first step, the defamed person’s solicitor will usually write to the person who published the defamatory imputation, requesting that they do one or more of the following:

Write an apology to the defamed person.

Publish an apology in a public forum.

Immediately retract their statement (usually by publishing a statement in a public forum).

Pay money to the defamed person to compensate them for the loss suffered by the defamatory publication.

Agree to pay the full amount of the defamed person’s legal fees.

Going to court

After this, if the situation hasn’t been resolved to the defamed person’s satisfaction, they may instruct their solicitor to file a claim in court. At this point, the defamed person becomes known as the plaintiff because they have commenced the legal action. The publisher of the comments becomes known as the defendant because they will be defending themselves against the legal action.

The claim will set out all the reasons why the plaintiff claims to have been defamed, the opportunities given to the defendant to resolve the issue and the financial amount the plaintiff is seeking. This will include damages for harm to reputation as well as legal costs.

The defendant then has an opportunity to file a defence to the claim within a certain time period. It is highly recommended that the defendant instructs a lawyer before filing the defence in the court because any errors could have very serious consequences for the defendant’s ability to defend the claim.

The court then sets out a timetable for exchange of the documents that are relevant to the case and brings the parties together to try to find a resolution to the dispute without going to trial. If a resolution can’t be achieved, the Court will set down a timetable for the case to go to trial so that it can ultimately make a decision about the claim.

What should I do if I am threatened with an action in defamation?

It can be intimidating to receive a letter from a solicitor threatening to sue, but this doesn’t mean that you have no option but to give in to their demands. A solicitor may overstate their client’s entitlement for damages or identify a publication as defamatory when in fact the publication does not contain any defamatory imputations.

The most important thing to do is to seek legal advice immediately. A person claiming defamation must prove, not merely assert, that the defamatory imputation has resulted in them suffering loss, damage and/or harm. Simply forwarding a letter does not entitle a person to compensation.

Although their solicitor may demand that you act in accordance with their correspondence, you may have a defence to the claim of defamation. If this is the case, you are not required to pay money, retract the statement, or do anything else that the person demands. It can be difficult to know whether you have a defence, which is why it’s essential to consult with an experienced defamation lawyer as soon as possible.

A letter from a person claiming defamation, or their lawyer, may require you to respond within a certain time period, for example seven days. If you don’t respond, they may commence legal action without further notice to you. This will dramatically increase the legal fees associated with the action, which is why it’s essential to see a lawyer as soon as you receive a letter of this type.

Sometimes, a person claiming defamation may decide not to pursue any further legal action once they have received a response from the publisher’s lawyer. This is because the lawyer can point out the weaknesses of the other party’s case and set out the defences. They may also put the person on notice that the publisher may seek to recover their legal costs if the legal action is continued.

What does it mean?

All of this means that instructing a solicitor may be far more economical than agreeing to pay money to a person claiming defamation. But if the matter does proceed to trial, a lawyer can assist you by trying to reduce the amount of money that you may be required to pay. They can also assess the amount of damages likely to be awarded (if any).

If you are concerned about possible defamation action against you, contact us today. We have a team of experienced defamation lawyers who can assist you.

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Testimonials

Having such a short time frame I was very impressed with the outcome made by [my solicitor]. Excellent and timely manner

Sebastian

Kurralta Park

Very professional mannerism and overall great outcome was delivered by Websters Lawyers.

Nicholas

West Ryde NSW

Helpful, explained fully, patient, excellent service.

Kerry

Ridgehaven

Patient and helpful in explaining the process.

Brian

Ridgehaven

Call Websters Lawyers for a most professional and friendly service. All understanding with [my solicitors] and the reception staff. Thank you so much.

Christine

Magill

Making my will was effortless on my part, with everything explained clearly. Well done to all.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

]]>https://www.websterslawyers.com.au/court-litigation-lawyers/sued-defamation/feed/0BREATH ANALYSIS: WHAT HAPPENS IF I DON’T COMPLY?https://www.websterslawyers.com.au/traffic-matters/breath-testing-comply/
https://www.websterslawyers.com.au/traffic-matters/breath-testing-comply/#respondThu, 25 Jan 2018 03:35:23 +0000https://www.websterslawyers.com.au/?p=2758Click to Call Testimonials Find an Expert BREATH TESTING: WHAT HAPPENS IF I REFUSE TO COMPLY? - By Naomi Hill - When police conduct a breath analysis for drugs or alcohol, most people comply by blowing into the testing devices. But sometimes, a person may not give a breath test, either because they can’t, or…

BREATH TESTING: WHAT HAPPENS IF I REFUSE TO COMPLY?

When police conduct a breath analysis for drugs or alcohol, most people comply by blowing into the testing devices. But sometimes, a person may not give a breath test, either because they can’t, or because they choose not to. What happens when a person refuses or fails to comply with a police direction to give a breath analysis? The Supreme Court recently considered this issue.

Police were concerned that a woman who was driving her car in Adelaide’s central business district was travelling at high speed. They used sirens and flashing lights to try to stop her. On three occasions, she slowed down as if to stop, but then drove on. Eventually she stopped in a dead-end street in Unley.

When police directed the woman to take an alcotest, she appeared confused, was speaking slowly, sounded sleepy and smelled of alcohol. She eventually took the test, returning a blood alcohol concentration result of 0.163. Police then took her to a police station for a breath analysis.

Over a period of about one hour, on six occasions police directed the woman to submit to the breath analysis. The woman said that she wanted to speak with her lawyer but couldn’t recall the lawyer’s contact details. Eventually, when the details were located it was 3.00 am and the lawyer was unavailable.

The woman didn’t give a breath analysis sample. She was charged with failing to submit to the breath analysis and failing to stop her car to submit to an alcotest. She claimed that at the police station, she had suffered from a panic attack, which meant that she couldn’t comply with the directions. She claimed that she had felt dizzy and detached from her body, that she felt like she was going to vomit and that she had a lump in her throat. She said that she hadn’t understood the police directions to submit to the breath analysis.

Police powers to stop and test

Police have wide powers to stop drivers of vehicles. They can direct a vehicle to stop for a licence check and to submit the driver to random drug or alcohol testing.

If a driver returns a positive result on the roadside alcotest, police have the power to direct them to submit to a breath analysis. A breath analysis is a usually conducted at a police station or at an established driver testing station (commonly referred to as a “booze bus”).

A driver who is required to submit to a breath analysis must not refuse or fail to comply with reasonable directions by police to submit to the breath analysis.

However, the law recognises that some people can’t submit to a breath analysis because they either:

Don’t understand what is required of them; or

Have a medical condition that prevents them from complying.

In some circumstances, South Australian law will allow a person to raise a defence to charges of failing to submit to a test. The legal requirements for this are very specific and if you believe that you may have a defence due to physical or mental impairment, you should seek legal advice immediately.

The penalties for failing to comply with a police direction in relation to a alcotest and/or breath analysis are severe and can include lengthy licence disqualification and fines.

Decision

When the case went to trial, the Magistrate found that the woman was able to understand and answer police questions. She hadn’t given any reason why she could not submit to the breath analysis test. The Magistrate decided that the panic attack hadn’t immobilised her mind to the extent that she was unable to understand the police requests. She was found guilty of the charges.

The woman appealed the decision to the Supreme Court of South Australia, saying that the Magistrate hadn’t given adequate reasons for his judgment.

The Supreme Court considered what the police or prosecution had to prove to convince a court to find a person guilty.

It said that when a driver claims not to have understood a direction to submit to a breath analysis the prosecution must prove, beyond a reasonable doubt, that:

The driver understood the police direction, and

The driver wilfully refused or failed to comply with that direction.

To put it another way, prosecution must prove that the driver’s failure or refusal to comply with the direction was a voluntary act.

It upheld the decision to convict the woman for failing to stop her car to submit to the alcotest. It overturned the conviction for failing to submit to the breath analysis. This was because there was a question whether the magistrate had actually found that she was guilty beyond reasonable doubt of this latter offence.

What does it mean?

If you have been unable to comply with a breath analysis because of a medical condition, it is essential to get legal advice as soon as possible. Penalties can be serious and can have a severe impact on your lifestyle and livelihood. A good traffic lawyer can consider whether your condition gives you a defence to the charges, and whether the refusal to undertake the breath analysis was voluntary or involuntary.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

]]>https://www.websterslawyers.com.au/traffic-matters/breath-testing-comply/feed/0IS IT POSSIBLE TO REDUCE DEMERIT POINTS FOR A TRAFFIC OFFENCE?https://www.websterslawyers.com.au/news/demerit-points-reduction/
https://www.websterslawyers.com.au/news/demerit-points-reduction/#respondThu, 18 Jan 2018 02:16:10 +0000https://www.websterslawyers.com.au/?p=2726Click to Call Testimonials Find an Expert IS IT POSSIBLE TO REDUCE DEMERIT POINTS FOR A TRAFFIC OFFENCE? - By Naomi Hill – It’s a common issue for many of us who drive – a momentary lapse in concentration leading to an on-the-spot fine for a traffic offence. Often, demerit points accompany the fines. While…

IS IT POSSIBLE TO REDUCE DEMERIT POINTS FOR A TRAFFIC OFFENCE?

It’s a common issue for many of us who drive – a momentary lapse in concentration leading to an on-the-spot fine for a traffic offence. Often, demerit points accompany the fines. While the fines can hurt financially, it’s the demerit points that can really deliver a crushing blow, especially if the extra points put you at risk of losing your licence. A man recently found himself in this situation and successfully applied for a reduction in demerit points.

For some traffic offences, you will incur demerit points against your driver’s licence. They remain on your licence for three years from the date that the offence was committed.

Different offences incur different amounts of points. For example, exceeding the speed limit by 30 kilometres per hour or more attracts seven points, while driving in an emergency stopping lane incurs three points.

If a full licence holder incurs 12 or more points, they are disqualified from driving. The length of disqualification depends upon how may points have been accumulated over and above 12 points.

It’s also important to understand that once you pay a fine for a driving offence, you can’t challenge the demerit points. Payment of the fine is taken as an admission that you committed the offence and there is nothing that can be done to challenge the points. That’s why, if you wish to apply to have the points reduced, you should seek urgent legal advice before you pay the fine.

Background – reduction in demerit points

In this case, the man drove past a “no entry” sign on a residential street and police issued him with an on-the-spot fine. The offence also attracted a three-demerit point penalty.

Rather than pay the fine, the man elected to be prosecuted and to apply to the Magistrates Court to reduce the demerit points from three to one.

The law allowed the Court to reduce the demerit points if the offence was trifling, or if there was a “proper cause” for the reduction.

The man said that there was proper cause to reduce the points but the Court disagreed and imposed the three-demerit point penalty. The man appealed the decision to the Supreme Court of South Australia.

Decision – Supreme Court Appeal

The Supreme Court said that in order to work out whether there was “proper cause,” it had to consider all of the circumstances of the offence, the seriousness of those circumstances and whether the circumstances were special enough to find proper cause. It also said that hardship and possible disqualification of licence were not enough to establish proper cause. On the other hand, if the offending was less serious than typical offences of the same type, that may be taken into consideration.

The Court found that proper cause existed because:

The offending occurred on a Wednesday morning rather than during a peak traffic period.

At the time, the traffic was light and driving conditions were good.

The offending didn’t present a danger to others.

The “no entry” signs were being used to address traffic flow rather than for reasons of public safety.

The man’s offending wasn’t deliberate; it was inadvertent because:

The man had mistakenly assumed that the intersection would be the same as a nearby similar intersection that he used regularly.

The signs weren’t obviously visible immediately before he entered the intersection.

The Court also found that even though the man admitted that he had been slightly distracted because he was using Bluetooth to have a telephone conversation, he hadn’t actually committed an offence by doing this.

The combination of all of these things demonstrated to the Court that the man didn’t deliberately commit the offence. It found that there was proper cause to reduce the demerit points to one point.

What does it mean?

This case shows that it is possible to have demerit points reduced for proper cause. Although each circumstance was unremarkable on its own, all of the circumstances combined gave a unique situation in which the man was able to demonstrate that the points should be reduced in the interests of fairness.

Interestingly, the Court also looked at other situations in which proper cause might be applied. In the case of a speeding offence, it said that the following factors might be relevant:

That the person was travelling only slightly above the speed limit.

Light traffic conditions.

The offence was “fleeting”. That is, the person was speeding for only a few seconds before reducing speed.

There was no risk to the safety of others.

Whether the driver had a good explanation for the offence, for example an emergency.

Courts traditionally are very reluctant to reduce demerit points and so legal submissions must be carefully considered and structured to convince a Court that it’s the right thing to do.

If you are concerned about the demerit points that you will incur for a traffic offence, especially if you are at risk of losing your licence, you should seek the urgent legal advice of an experienced traffic lawyer. For the reasons discussed above, it is essential that you do this before paying any fine.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.

]]>https://www.websterslawyers.com.au/news/demerit-points-reduction/feed/0WHAT CAN YOU DO IF YOUR LOVED ONE CAN’T MAKE A WILL?https://www.websterslawyers.com.au/deceased-estates-inheritance/will-loved-one/
https://www.websterslawyers.com.au/deceased-estates-inheritance/will-loved-one/#respondWed, 10 Jan 2018 00:02:38 +0000https://www.websterslawyers.com.au/?p=2569Click to Call Testimonials Find an Expert WHAT CAN YOU DO IF YOUR LOVED ONE CAN'T MAKE A WILL? - By Karin Daehn-Alabi - If you have a loved one who doesn’t have the ability to make a will, you may be faced with some serious issues. For example, if that person has a large…

WHAT CAN YOU DO IF YOUR LOVED ONE CAN'T MAKE A WILL?

If you have a loved one who doesn’t have the ability to make a will, you may be faced with some serious issues. For example, if that person has a large estate, what can be done to ensure that after their death, it’s distributed in the way that person would want? This was the issue recently considered by the Supreme Court when it had to decide whether to make a will on behalf of a person who had no capacity to do so.

Background – Statutory wills

RJ was a 31 year old man. As a child, he had been diagnosed with autism, intellectual impairment and obsessive compulsive disorder. His mother had been his primary carer since birth. He’d had nothing to do with his father since he was a newborn baby.

Since 2005, RJ had resided at a government-operated facility for people with intellectual disabilities. His mother continued to provide a significant amount of care to him.

In 2010, he escaped from the facility and fell from a bridge, causing significant and permanent brain and spinal injuries. The South Australian government paid him $3.2 million in compensation.

After the accident, RJ lived in supported accommodation in Murray Bridge.

RJ’s mother applied to the Court to have a statutory will made on his behalf. In the lead-up to the hearing, the Court appointed a litigation guardian, who was an independent lawyer. The litigation guardian’s role was to protect the interests of RJ.

A statutory will is a Court-made will. It is made on behalf of someone who can’t make their own will because they don’t have legal capacity. This means that they don’t have the ability to understand what the will is, what it means to make a will and/or the implications of making the will. Often, this type of incapacity arises from intellectual impairment, for example dementia.

When deciding whether to make a statutory will, a Court will try to work out what the person would have wanted, if they had capacity to make a will for themselves.

South Australian laws require that the situation meet specific criteria before a Court can agree to make a statutory will. The Court must be satisfied that:

The person doesn’t have capacity to make the will.

The proposed will reflects the person’s likely intentions.

It is reasonable to make the will.

The Court must also take into account:

Any evidence of the person’s wishes.

The likelihood that the person may later have testamentary capacity.

Any previous wills made by the person.

The interests of any person who might be a beneficiary if the person died without a will.

The interests of anyone who cared for the person or provided emotional support.

Any gift that might be reasonable (for example, to a charity).

The size of the estate.

Decision

The mother was asking the Court to make her the beneficiary of 75 percent of the estate. LT was her companion and she sought orders that:

LT be named as beneficiary of 25 percent of the estate.

If LT predeceased the mother, she would inherit his share.

If she died, RJ’s niece and nephew would inherit the mother’s interest.

If the niece and nephew died, the estate would go to various charities associated with RJ’s illnesses and conditions.

The relationship between the mother and LT was somewhat unusual. They lived together as companions but didn’t share an intimate relationship. She cared for him because he had suffered a brain aneurism and a damaged knee. He provided her with companionship and support. He had a close relationship with JR, visited him regularly and took him on outings. The evidence was clear that JR saw him as a father figure. LT had been in JR’s life for 13 years.

JR’s father had been informed of the proceedings but wasn’t interested in claiming an interest.

The Court said that there was no dispute that JR lacked capacity to make a will. It also found that it was appropriate to make a statutory will because:

The estate was a significant size.

JR lacked capacity.

It wasn’t appropriate for the estate to be administered in intestacy (meaning without a valid will) because the law required that half of the estate would pass to JR’s father.

If JR had capacity, it is likely that he would have excluded his father because he never knew him.

The Court noted that JR had never had legal capacity and would never have legal capacity. This made it more difficult to work out what he would have wanted to do with his estate because the Court couldn’t look to any prior conduct for indications about how he might have made a will.

It decided that because JR viewed LT as a father figure, he would have wanted to provide for LT. It also decided that because the mother had cared for him his whole life, she should inherit most of the estate. It said that a split of 75 percent to the mother and 25 percent to LT was appropriate.

It also said that the mother’s suggestions of default beneficiaries should those bequests fail, was appropriate.

It approved the statutory will and made orders for the will to be executed on JT’s behalf.

What does it mean?

A court will always be cautious in deciding whether to make a statutory will on someone’s behalf. It will assess the situation extensively and undertake a delicate balancing process to try and work out what the person would have done, had they been able to make a will themselves.

If you believe that a friend or loved one should have a statutory will, you need legal advice from an experienced wills and estates lawyer. The process isn’t straightforward, but it’s always a good idea to check. In this case, the mother had spent her whole life caring for her son, probably without having the time or the funds to properly plan for her retirement. The statutory will meant that she could have some peace of mind about her financial security into retirement and old age.

Patient, professional, good communication about procedures and probable outcomes.

Jeffrey

Brompton

Thank you for all your work over the course of the case. You [both] were always very approachable and I appreciated your understanding and professionalism in all areas.

Alexis

Christie Downs

All in all my experience was great. Thank you for your time and expertise.

Christina

Seacombe Gardens

My matter was dealt with efficiently and was explained in an understandable language. A pleasant experience.

Mary

Ridgehaven

Practical and very helpful. Reasons and explanations given where needed

John

Ridgehaven

I stumbled across Websters in the Yellow Pages and I rang, explained my situation and immediately they took my case on. Greatly appreciate their services.

Diane

Ridgehaven

The service from Websters Lawyers was outstanding. [My solicitor] was caring, had patience and was very professional. Wonderful personality.

Julie

Yorketown

[My solicitor] made everything so simple to understand. [The receptionist] was wicked too, would recommend them anytime. Level of entire service was outstanding.

Craig

Golden Grove

I had dealings with Websters over 20 years ago. They were my first choice when I recently needed legal advice. Both legal and office staff were professional, courteous and accessible at all times. Everything was explained up front in a clear and concise manner. I would not hesitate to recommend their services.

Rod

Dernancourt

It has truly been a pleasure communicating with you throughout the process. I really appreciate your patient and speedy replies to my questions and requests. You were always able to provide an easily understood response and this helped me deal with the process. Your friendly and positive manner encouraged me to seek your advice.

Kathleen

Battery Hill QLD

[My lawyer's] service was prompt and efficient with all questions explained clearly with all our requests carried out within the laws. Overall service was very satisfactory.

Overall, I was happy with my outcome and my lawyer, would definitely recommend [my lawyer].

Janet

Adelaide

[My solicitor] was excellent at helping us through preparing our wills which were particularly challenging as they involved assets in multiple countries. She was professional and knowledgeable and spent time tailoring the wills to our needs.

Jonathan

Greenwith

[My solicitor] was very helpful, respectful and polite. She made sure I understood the process and documentation of our wills.

Rachel

Greenwith

Professional. Smooth Transaction.

Luke

Largs North

I found the whole experience from Receptionist to Solicitor excellent. They completely put us at our ease.

Ethel

Smithfield

This was a new experience for us and didn’t have a clue what to do. [Our solicitor] on our first visit put us at ease, explained what will happen, pointed out there was a strong case. [Our solicitor] was genuine in her approach, kept us well informed, explained actions several times with patience and understanding. Overall very happy with the service we received.

Stephen

Elizabeth Vale

[My lawyer] was very reassuring in her approach to my case. I felt that every possibility in terms of evidence to provide and possible outcomes were explained to me, The result of the case was the best possible outcome I could have expected.

David, Belair

With no previous dealing with the criminal justice system, [our solicitor] gave us excellent advice and guided us through a nightmare to achieve a just and correct outcome. [Our lawyer] was both forthright and compassionate in her handling of our case.

Malcolm, Belair

[My lawyer] explained all the legal terms in language I could understand – she was very easy to talk to.

Cameron, Munno Para

I felt confident knowing my matter was in good hands. Very professional!

Shravan, Christie Downs

Initial phone call was fantastic and the role of an executor was fully explained.

Penny, Henley Beach

The service I received was efficient and promptly finalised. The solicitor clearly explained the details and I was happy with how easy it was.

Dale, Fairview Park

[My lawyer] was exactly the lawyer I needed in a serious matter. The outcome was as predicted which was a fantastic result. I received prompt professional and personal service at all times. Capable and supportive in a very stressful period.

Jason, Munno Para West

I had any of my concerns answered to my satisfaction and understanding.

Valda, Ingle Farm

[My lawyer] is an excellent professional lawyer who assisted in achieving a great positive outcome/result. I sincerely thank you and your great staff for your assistance and guidance throughout my claim. Would highly recommend [my lawyer], staff and Websters Lawyers. Kept fully informed and guided, professionally throughout the matter.

Rena, Northgate

Our work was dealt with very efficiently and speedily. Our lawyer was very professional, at the same time as being approachable. Communication was great.

Christina, Highbury

My experience with Websters Lawyers was far beyond what I expected. From the moment I spoke to [my lawyer] she made me feel very comfortable and eased my stress. In my case I had a court appearance the day before we were scheduled to fly to Spain, Considering my first appointment with her was only 2 weeks before the court hearing, she was able to obtain the police statement and thoroughly work on my case within that limited time frame. She was very knowledgeable, understanding and confident which greatly relieved so much pressure from me and my family. At court, she explained everything thoroughly and advised me of all the possible outcomes. Price, service and result, very highly recommended. Thank you Websters Lawyers.

Rafael, Davoren Park

I have high expectations and they were met. Websters service was swift, courteous, professional and met the agreed budget. I will recommend Websters to my family, friends and colleagues. Thank you.

Peter, Forestville

I would recommend Websters Lawyers, especially for [my lawyer's] dedication and exemplary attitude and advice. She is the epitome of a good lawyer. The service was impeccable.

Pamela, West Lakes

[My lawyer] was very professional and I was made comfortable to understand.

Gregory, Penfield

I was very pleased with the end result and how well [my lawyer] conducted herself.

Sonya, Glanville

Very professional.

Jesse, Morphett Vale

[My lawyer] has been very prompt , reliable and provided a high level of communication.

Peter, Parkside

My experience at Websters was very positive. The stress was taken from me and I could not be happier with the outcome. [My lawyer] at Websters was professional, personable, available and caring. Thank you for making the experience stress free.

Magda, Holden Hill

Found my lawyer upfront and reliable – I would highly recommend Websters Lawyers.

Lee, Evanston Park

Top bunch of solicitors and admin staff. Very friendly and to the point service.

Bradley, Hallett Cove

Websters Lawyers were very professional in their service, I would be happy to recommend them.

Carole, Tea Tree Gully

We would not hesitate in recommending Websters for any legal matter. They are professional and courteous at all times and call back when they say they will.

David and Dianne, Lockleys

I fully recommend Websters Lawyers. This was the 3rd time myself & my family have used Websters Lawyers. In these stressful times we have found them to answer and guide us through the process needed to accomplish the legal requirements in a timely and courteous manner.